[Federal Register: December 9, 2008 (Volume 73, Number 237)]
[Rules and Regulations]
[Page 74615-74631]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09de08-6]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 14
[FWS-R9-LE-2008-0024; 99011-1224-0000-9B]
RIN 1018-AV31
Importation, Exportation, and Transportation of Wildlife;
Inspection Fees, Import/Export Licenses, and Import/Export License
Exemptions
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), publish this
final rule to revise subpart I--Import/Export Licenses, of title 50 of
the Code of Federal Regulations, part 14 (50 CFR 14), to clarify the
import/export license and fee requirements, adjust the inspection fee
schedule, and update license and inspection fee exemptions. We are
clarifying when an import/export license is required by persons who
engage in the business of importing and exporting wildlife as well as
changing the license requirement exemptions. Revised regulations will
help those importing and exporting wildlife better understand when an
import/export license is required and will allow us to consistently
apply these requirements. We are gradually increasing inspection fees,
and now publishing the changes for 2008 through 2012. We determined
that these inspection fees must be adjusted every year to cover the
increased cost of providing inspection services. Because we are
publishing these inspection fee changes now, importers and exporters
can accurately predict the costs of importing and exporting wildlife
several years in advance.
DATES: This final rule is effective January 8, 2009.
FOR FURTHER INFORMATION CONTACT: Kevin Garlick, Special Agent in
Charge, Branch of Investigations, Office of Law Enforcement, U.S. Fish
and Wildlife Service, telephone (703) 358-1949, fax (703) 358-1947.
SUPPLEMENTARY INFORMATION:
Public Assistance for Import/Export Questions
We highly recommend that you contact our wildlife inspectors about
importing and exporting procedures and requirements before you import
or export your wildlife. We have wildlife inspectors stationed at
numerous ports throughout the country. You can find contact information
for our wildlife inspectors on our Web site at: http://www.fws.gov/le/
ImpExp/inspectors.htm. In addition, the Service has a telephone hotline
that is staffed Monday through Friday, 8 a.m. through 8 p.m. Eastern
time, to provide assistance for any questions you may have regarding
importing and exporting wildlife, at 1-800-344-WILD.
Background
We have oversight responsibilities under statutory and regulatory
authority to regulate the importation, exportation and transportation
of wildlife. Consistent with this authority, we have established an
inspection program to oversee the importation, exportation, and
transportation of wildlife and wildlife products. In support of our
program activities, we promulgated regulations contained in 50 CFR 14
to provide individuals and businesses with guidelines and procedures to
follow when importing or exporting wildlife, including parts and
products. These regulations explain the requirements for individuals or
businesses importing or exporting wildlife for commercial purposes, or
for people moving their household goods, personal items, or pets, as
well as the exemptions provided for specific activities or types of
wildlife. The regulations at 50 CFR 14 provide individuals and
businesses with the specific ports and locations where these activities
may be conducted and any fees that may be charged as a result of these
activities.
Final Rule
The following parts of this preamble explain the final rule and
present discussion of the substantive issues of each section that we
are changing in subpart I of part 14, along with our responses to
comments we received on the proposed rule. The final rule largely
implements the changes we described in the proposed rule but makes some
adjustments based upon public comments. We are changing the
requirements for an import/export license, how to apply for an import/
export license, what inspection fees apply to importers and exporters,
and what exemptions we apply to licenses and fees.
On February 25, 2008, we published a proposed rule in the Federal
Register (73 FR 9972) revising 50 CFR 14, Subpart I. The public comment
period remained open until April 25, 2008. In addition, we sent letters
to organizations and associations that represent businesses that could
be affected by the rulemaking. We wanted to ensure that these entities
had an opportunity to review and comment on our proposed rule.
In response to this proposed rule, we received 72 comments from the
public. These included comments from industry representatives importing
or exporting fur, aquacultured white sturgeon, elk, deer, mother-of-
pearl shell, tropical fish, corals, insects, seafood products, and
other wildlife commodities, as well as comments from one foreign
embassy and several trade councils, associations, and non-governmental
organizations. Four of the comments were unrelated to the proposed rule
and are not discussed below. We also held a public meeting on April 3,
2008, that was attended by 14 persons. Two commenters provided oral
comments at the meeting. The majority of comments we received were in
writing and pertained to changes in the inspection fee structure. Many
comments were form letters that were identical or nearly identical in
content. Many comments provided variations on the same substantive
issues and ranged from strongly supportive to strongly critical.
Our Changes to Import/Export License Requirements (Sec. 14.91--When do
I need an import/export license?)
We are removing the definition of ``engage in business as an
importer or exporter of wildlife,'' because the elements of the
definition are already expressed in the current definition of
``commercial,'' and the broader definition of commercial more
accurately reflects what we consider as ``engaging in business.''
We are removing the existing section on certain persons required to
be licensed, Sec. 14.91(c), and replacing it with a table that
provides examples of when we consider persons to be engaging in
business as an importer or exporter of wildlife. We are limiting who
should be licensed to those persons directly involved with importing
and exporting wildlife. Therefore, we are
[[Page 74616]]
eliminating requirements for persons who are indirectly involved with a
shipment either before or after our clearance of the shipment. Based
upon comments, we added one example related to hobbyists and commercial
activities and one example regarding hunting trophies to the table. We
also made changes to the language in other examples to further clarify
when we require an import/export license.
Comments on Our Proposed Changes to Sec. 14.91
Three commenters responded to the changes in this section. One
commenter representing 11 nongovernmental organizations agreed with our
use of the definition of commercial to replace the phrase ``engage in
business.''
We received one comment stating we should not treat imports of
hunting trophies as commercial shipments when they are consigned in the
hunter's name in care of a taxidermist or tannery. We agree with the
commenter and have added an example to reflect this. Imports of
personal hunting trophies for a hunter that are shipped in care of a
taxidermist or tannery are not considered commercial shipments. We
recognize that many hunting trophies imported by a hunter are sent
directly to a taxidermist for preparation after import clearance. The
commercial work that is conducted domestically after clearance does not
cause a personal trophy import to be considered commercial.
One commenter representing 11 nongovernmental organizations
suggested several changes to the table in Sec. 14.91(c). One comment
suggested we change Sec. 14.91(c)(4) to include laboratory suppliers.
We agree and have updated the table accordingly. Another suggestion was
that we change Sec. 14.91(c)(5) to include the phrase ``of personally
owned live wildlife (pets).'' We agree with the concept and have
updated the table accordingly. A final suggestion was that we change
Sec. 14.91(c)(6) regarding hobbyists to include the phrase
``individual owner of personal and household effects'' and limit this
example to previously owned specimens. We decline to adopt this
suggestion since we do not believe the narrowing of this example to
personal or household effects that are previously owned specimens would
be appropriate. All noncommercial imports and exports for personal use
are exempt from the import/export license whether or not they are
shipped as a personal or household effect or are previously owned. This
example remains unchanged from the proposed rule.
Our Changes to Exemptions to Import/Export License Requirements (Sec.
14.92--What are the exemptions to the import/export license
requirements?)
We are removing two exemptions from our import/export license
requirements for businesses that import or export products from several
mammal species that have been bred and born in captivity and for
circuses that import or export wildlife.
Until the effective date of this final rule, our regulations have
allowed businesses that exclusively import or export chinchilla,
fisher, fox, marten, mink, muskrat, and nutria that have been bred and
born in captivity, and products of these animals, to conduct business
without obtaining an import/export license. If a particular business
chooses to import or export wild specimens of these species or species
other than those listed above, they must obtain an import/export
license. Upon the effective date of this final rule, we are removing
the import/export license exemption in Sec. 14.92 for businesses that
exclusively import or export chinchilla, fisher, fox, marten, mink,
muskrat, and nutria that have been bred and born in captivity or
products of these animals.
Our current import/export license regulations also exempt
businesses that import or export products from the rabbit and karakul.
The karakul, which is a variety of the domestic sheep, and the rabbit
are defined as domesticated species and, therefore, are already
exempted from all Service import or export requirements.
Our import/export data show that the majority of businesses that
import or export mammals or products made from mammals do not deal
exclusively in chinchilla, fisher, fox, marten, mink, muskrat, and
nutria that have been bred and born in captivity. Rather, most
businesses deal in a mixture of these species and other species that do
not qualify for the import/export license exemption, or the trade is in
wild-caught specimens. Only approximately 1.5 percent of the shipments
declared to us in fiscal year 2005 consisted exclusively of captive-
bred specimens of the above-listed species. Although many businesses
have not taken advantage of the exemption, any exempted shipments still
require our inspection and clearance.
All other wildlife types that are identified as being exempt from
the import/export license, such as certain shellfish and nonliving
fishery products, are also wildlife that the Endangered Species Act (16
U.S.C. 1531 et seq.) or these regulations have exempted from inspection
and clearance. No statutory or regulatory inspection or clearance
exemptions are provided for captive-bred mammals or their products.
This exemption has had the unfortunate consequence of creating a
monetary incentive for the global trade community to falsely declare
wild mammal specimens as captive-bred upon import into the United
States. In addition, due to shipping and other business practices,
importers of foreign-sourced mammal products imported into the United
States are more likely to declare the products as captive-bred for
purposes of claiming the exemption than exporters of U.S.-sourced
mammal products.
Because these specific captive-bred mammal shipments are exempt
from the import/export license requirements, the corresponding
importers or exporters are not required to maintain records of their
imports or exports or any subsequent dispositions and do not have to
provide the Service with access to these records or inventories of
wildlife upon reasonable notice. The lack of recordkeeping requirements
and access to these records hinders our ability to investigate
instances of false declarations. These corresponding importers and
exporters are also exempt from paying inspection fees and filing
reports with the Service upon request. Because of all the problems that
have resulted from this exemption, we are removing the exemption to the
import/export license requirements for persons engaging in the business
of importing or exporting shipments containing only chinchilla, fisher,
fox, marten, mink, muskrat, and nutria that have been bred and born in
captivity or their products.
We also have determined that circuses will no longer qualify for
the exemption from our import/export license requirements. Our current
import/export regulations allow certain persons and businesses,
including circuses, to import or export wildlife without obtaining an
import/export license. However, with the exception of circuses, it is
apparent that these exempt businesses or organizations, which include
common carriers, custom house brokers, public museums, scientific or
educational institutions, and government agencies, are not engaging in
business as importers or exporters of wildlife. While circuses
typically do not import or export wildlife for resale, they do import
or export wildlife to stimulate additional business through ticket
sales or other promotions.
We clarify that importers and exporters of shellfish and nonliving
fishery products are exempt from the import/export license requirement.
We
[[Page 74617]]
had proposed to change the language in this section to ``nonliving fish
products,'' which reflects the historical working implementation by the
Service of this exemption. The Service defines shellfish in 50 CFR
10.12 as ``an aquatic vertebrate with a shell including but not limited
to, (a) an oyster, clam, or other mollusk; and (b) a lobster or other
crustacean; or any other part, product, egg, or offspring thereof, or
the dead body or parts thereof (excluding fossils), whether or not
included in a manufactured product or in a processed food product.''
The Service has also long defined fishery products as nonliving fish
products. However, based upon comments received, we retained the
original wording of ``fishery product'' but accepted the change of
``nonliving.'' This change makes it clear that the Service considers
only dead fishery products to be granted the exemption. Nothing in this
wording change affects how the Service implements this exemption.
Comments on Our Proposed Changes to Sec. 14.92
We received 12 comments from commenters related to our proposal to
remove the exemption to the import/export license requirements for
persons engaging in the business of importing or exporting shipments
containing only chinchilla, fisher, fox, marten, mink, muskrat, and
nutria that have been bred and born in captivity or their products.
Nine commenters representing U.S. retail businesses, a U.S. fur
industry coalition, a Canadian fur industry coalition, and the
government of Canada strongly opposed the elimination of the import/
export license exemption because of ``increased costs for shipping furs
and fur products between the United States and Canada.''
Several commenters opposed to the elimination stated that the
elimination would create an inequity of treatment between the United
States and Canada because Canada does not charge for inspections of
wildlife. Other commenters argued that elimination of the exemption
undermines the North American Free Trade Agreement (NAFTA) and one
commenter argued the elimination is contrary to U.S. obligations under
the General Agreement on Tariffs and Trade (GATT). Another commenter
stated the elimination of the exemption represented a discriminatory
action against small retailers and manufacturers. Two commenters stated
that if cost recovery was our objective, then we should remove all
exemptions.
Three commenters representing 11 nongovernmental organizations
strongly supported the elimination of the exemption that in their view
had created incentives to falsely declare wild animals as captive-bred.
One commenter stated that the exemption hampered the Service's ability
to track the trade and any possible impacts on wildlife populations,
while another commenter stated that removal would weaken the ability of
the trade to falsely declare wild-source products as from captive-bred
animals. One commenter stated that in the interest of fairness the
exemptions should be revoked and that it was ``unclear why for-profit
endeavors'' had ever been exempted since ``these businesses should
share in the funding of the inspection program in tandem with other
commercial traders.''
As previously stated, most businesses deal in a mixture of these
species and other fur-bearing species that do not qualify for the
import/export license exemption, or the trade is in wild-caught
specimens. For those shipments that do qualify, we still must provide
inspection and clearance services to fulfill our legal mandates. In
addition, as noted previously, retention of this exemption would allow
some members of the trade to continue to falsely declare the source of
their specimens in order to receive a fee exemption and our inability
to review import records would not allow us to detect these false
practices. This exemption has had the unintended consequences of
unfairly granting a fee exemption primarily to foreign-origin goods.
Finally, as discussed throughout this rule, we do not find it fair that
nonexempt businesses pay more than their share of the costs in order
for us to recover the costs not paid by exempt businesses. See the
preamble discussion associated with inspection fees (Our Changes to
Inspection Fees; Sec. 14.94--What fees apply to me?), for a further
discussion on fees related to this exemption.
We have determined that removing this exemption is wholly
consistent with the United States' obligations under NAFTA and GATT
because the exemption provided an advantage to businesses that deal
exclusively in chinchilla, fisher, fox, marten, mink, muskrat, and
nutria that have been bred and born in captivity. Besides, GATT clearly
permits the recovery of costs for services rendered to importers and
exporters. In addition, neither GATT nor NAFTA overrules our
obligations to regulate the international wildlife trade under the
Convention on International Trade in Endangered Species (CITES) or
stricter U.S. conservation laws, provided we do so in a non-
discriminatory manner. Those currently not receiving the exemption pay
a disproportionate share of the costs of the inspection program. The
final rule establishes a level playing field.
Although some countries do not currently charge for import/export
related services, inspection fees for these types of services are being
adopted by more and more countries. In the United States, commercial
importers and exporters of wildlife must have permission to engage in
the business of importing or exporting wildlife, file required
declarations, and receive clearance from the Service. These are not
activities that the general taxpayer engages in and thus the recipient
of these services should be responsible for paying for the costs of
these services. We are not making any changes to the rule in response
to these comments.
We received four comments in response to our proposal to eliminate
the import/export license exemption for circuses. As previously
mentioned, two commenters stated that if cost recovery was our
objective, then we should remove all exemptions. One commenter strongly
concurred that circuses should no longer qualify for exemption since
the ``circus trade results in high profits for this industry.'' Another
commenter strongly supported the removal of the exemption since
commercial entertainment such as circuses, magic acts, and animal acts
are for-profit businesses. We agree that circuses are importing and
exporting for commercial purposes. We are therefore removing the
exemption from the import/export license requirements. We consider
shipments of wildlife imported or exported as part of commercial
entertainment, such as magic acts or animal shows, commercial as well
and are not exempting them from import/export license requirements.
Seven commenters representing the seafood industry and the National
Oceanic and Atmospheric Administration National Marine Fisheries
Service (NOAA-Fisheries) provided comments related to the proposed
wording in Sec. 14.92 regarding the exemption from the import/export
license requirements for certain shellfish and nonliving fish products.
The comments addressed shipments of squid, octopus, and cuttlefish. All
of the comments from industry opposed the change in wording because of
what they perceived to be a narrowing of the exemption and a creation
of new requirements for squid, octopus, and cuttlefish. As stated
above, the change in wording does not affect the way the Service
currently implements the exemption.
One commenter stated that the legislative history of the Endangered
[[Page 74618]]
Species Act (ESA; 16 U.S.C. 1531 et seq.) suggests that Congress
intended to exempt squid from licensing requirements. We disagree.
Nothing in the legislative history of the ESA provides guidance on what
species are included in the statutory exemption. Indeed the same
commenter also indicates that the initial House bill, the Senate bill,
and the Conference report all failed to provide any explanations as to
what was intended to be covered by the exemption. Several commenters
referred to other legislation, such as the Saltonstall-Kennedy Act and
the Magnuson-Stevens Act, which include squid as a fishery product. We
note, however, that the referenced pieces of legislation have overly
broad definitions of both ``fish'' and ``fishery products'' that in
many instances include all aquatic plants and animals. Nothing in these
references requires us to apply these definitions to wildlife shipments
regulated under the ESA.
NOAA-Fisheries, our partner agency in oversight of these species,
commented that both the Magnuson-Stevens Act provisions and the
regulations of the agency's Northeast Region lack a clear definition of
shellfish. The NOAA-Fisheries commenter referenced a definition of
shellfish from the United Nations Food and Agriculture Organization
that states ``shellfish includes both mollusks, such as clams, and
crustaceans, such as lobsters,'' as well as the Service's definition of
shellfish, and stated that their understanding is that organisms in the
class Cephalopoda are shellfish. While we would agree that squid,
octopus, and cuttlefish are mollusks, we do not consider them to be an
aquatic invertebrate with a shell as is required under the definition
and is shown through examples in the definitions. NOAA-Fisheries
requested that we provide clarification in the rule on the definition
of shellfish and requested that the Service change the language in the
rule from ``Shellfish and fishery products'' to ``Shellfish, as defined
by 50 CFR 10.12, and nonliving fishery products.'' Although nothing in
this wording changes our implementation of the exemption, we accepted
these comments and changed the language accordingly.
Several comments we received from industry questioned our authority
to regulate shipments of squid, octopus, cuttlefish, and other seafood.
The ESA provides the Service with broad authority to regulate the
import and export of fish and wildlife through licensing of importers
and exporters, inspecting shipments, and charging and retaining
reasonable fees for processing applications and performing inspections.
This authority is not limited to endangered or threatened species or
those protected under CITES.
Several of these commenters referenced the Reorganization Plan 4 of
1970 and a memorandum of understanding between NOAA-Fisheries and the
Service transferring certain responsibilities to NOAA-Fisheries.
Nothing in the reorganization plan transferred the authority for
imports and exports of wildlife to NMFS. In fact, regulations at 50 CFR
222.205 state that importers or exporters of fish or wildlife subject
to NMFS jurisdiction should refer to our regulations at 50 CFR 14 for
importing and exporting requirements. We also note that NOAA-Fisheries
submitted comments on this exemption and not only did not question our
authority but indicated it looked ``forward to working with FWS in
advancing environmentally sound import/export regulations.''
Several commenters complained about the Service's selective
enforcement of this exemption. We are aware of the inconsistencies in
enforcement at our ports and are working nationwide to implement the
requirements consistently. We note that the Service currently does not
have direct access to manifest or entry information provided to U.S.
Customs and Border Protection (CBP) and relies heavily upon the import/
export community to comply with our regulatory requirements. Working
with CBP and our partners in the U.S. Food and Drug Administration, we
hope to gain greater compliance from the trade and consistent
application of the requirements.
Several commenters stated that the removal of the shellfish
exemption would create a financial burden and that we had provided an
inaccurate analysis of the costs of adding this new requirement. We are
not removing the exemption or adding requirements associated with
shellfish and nonliving fishery products. As we stated earlier, nothing
about the language change in this rule affects the way we currently
implement the exemption.
Our Changes to Import/Export License Application Requirements (Sec.
14.93--How do I apply for an import/export license?)
We are removing the specific additional information language from
the current Sec. 14.93(b) because we updated the import/export license
application form, FWS Form 3-200-3, to include this additional specific
information. We are also reorganizing the license conditions section
for clarity and to add the requirement that importers and exporters are
responsible for providing current contact information, including an
address, that the Service will use for official notifications.
For clarity, we are reorganizing the section that outlines
issuance, denial, suspension, revocation, or renewal of an import/
export license. We are also adding two new factors that are grounds for
suspension, revocation, denial, or renewal of an import/export license.
Although these factors are already generally covered by the regulations
in part 13 of subchapter B of chapter I of title 50 of the Code of
Federal Regulations, we wish to highlight these two factors for
wildlife importers and exporters. We are going to consider repeated
failure to provide the required prior notification for certain
shipments as possible grounds for action against an existing import/
export license holder or during consideration of a new or renewal
import/export license application. Failure by importers or exporters to
provide this required notification risks the health or condition of
live and perishable shipments because of clearance delays and requires
us to accommodate last-minute inspection schedule changes that directly
impact the schedules of other importers or exporters.
We are also adding the repeated import or export of certain types
of wildlife without following the requirements in this subpart as
grounds for action against an existing import/export license holder or
during consideration of a new or renewal import/export license
application. This repeated failure to follow requirements for certain
wildlife imports or exports may result in a restriction of the license
to disallow engaging in business with those particular types of
wildlife while still allowing the importer or exporter to continue to
engage in business with other wildlife.
Comments on Our Proposed Changes to Sec. 14.93
We received one comment from a license holder related to our
addition of repeated failure to provide prior notification as a
criterion for taking action against an import/export license holder.
The commenter stated we should clearly indicate that denial should be
made only where the violations can be considered egregious. The
commenter requested that we include examples of what those egregious
violations might be.
We consider the repeated failure to provide prior notification to
be a serious violation. As we stated in the proposed
[[Page 74619]]
rule, failure by importers or exporters to provide this required
notification risks the health or condition of live and perishable
shipments. It causes clearance delays and requires us to accommodate
last-minute inspection schedule changes that directly impact the
schedules of other importers or exporters. Importers and exporters
wishing to engage in the business of importing or exporting wildlife
must receive the Service's permission in order to do so. We believe
that continual failure to abide by Service import/export requirements
should subject a license holder to the potential denial of an import/
export license. The general permit conditions in 50 CFR part 13 do not
limit the use of this denial authority to only egregious violations,
and therefore we have not changed the rule based upon this comment.
We received two comments suggesting that the Service should define
``repeated'' in the context of revoking or not reissuing import/export
licenses, with one commenter suggesting we replace ``repeatedly'' with
``more than once.'' We decline to accept these comments. We feel that
the terms ``repeated'' and ``repeatedly'' give sufficient guidance in
the context of revoking or not reissuing import/export licenses, and
that in some circumstances, more than one violation may not warrant
revocation or not reissuing an import/export license.
Our Changes to Inspection Fees (Sec. 14.94--What fees apply to me?)
This final rule implements the fee structure described in the
proposed rule. We clarified it to state that if updates to the fee
schedule are not in place by December 31, 2012, the fees from 2012 will
apply to shipments from 2013 and beyond until a new fee structure is in
place. As we stated in the proposed rule, the regulations in 50 CFR 14
contain an inspection fee schedule for inspections of wildlife
shipments. We are changing the inspection fee structure and will
generally increase inspection fees to cover the increased cost of
providing these services and the required support.
The inspection fees currently apply primarily to commercial
importers and exporters whose shipments of wildlife are declared to,
and inspected and cleared by, Service wildlife inspectors, to ensure
compliance with wildlife protection laws. These fees are not intended
to fully fund the wildlife inspection program, which includes both a
compliance monitoring function involving services to the trade
community and a vital smuggling interdiction mission focused on
detecting and disrupting illegal wildlife trade. The fee increase
appropriately focuses only on recovering costs associated with services
provided to importers and exporters engaged in legal wildlife trade.
In developing this final rule, the Service is guided by the
Independent Offices Appropriations Act of 1952, codified at 31 U.S.C.
9701 (``the User Fee Statute''), which provides that services provided
by Federal agencies are to be ``self-sustaining to the extent
possible.'' The Act allows for agencies to prescribe regulations
establishing charges for services provided. Each charge is to be fair
and based upon costs to the government, the value of the service to the
recipient and the public policy or interest served. The Act also
authorizes the establishment of charges for special benefits provided
to a recipient that are at least as great as costs to the government of
providing the special benefits.
We are also guided by the Office of Management and Budget (OMB)
Circular No. A-25, Federal user fee policy, which establishes Federal
policy regarding fees assessed for government services. It provides
that user fees will be sufficient to recover the full cost to the
Federal Government of providing the service, will be based on market
prices, and will be collected in advance of, or simultaneously with,
the rendering of services. The policy requires Federal agencies to
recoup the costs of ``special services'' that provide benefits to
identifiable recipients.
The ESA (16 U.S.C. 1540(f)) also authorizes the Service to charge
and retain reasonable fees for processing applications and for
performing reasonable inspections of importation, exportation, and
transportation of wildlife. The benefit of inspection fees is the shift
in the payment of services from taxpayers as a whole to those persons
who are receiving the government services.
While taxes may not change by the same amount as the change in
inspection fee collections, there is a related shift in the
appropriations of taxes to government programs, which allows those tax
dollars to be applied to other programs that benefit the general
public. Therefore, there could be a relative savings to taxpayers as a
result of the changes in inspection fees.
The inspection and clearance of wildlife imports and exports is a
special service provided to importers and exporters who are authorized
to engage in activities not otherwise authorized for the general
public. Our ability to effectively provide these services and the
necessary support for these services depends on inspection fees.
Although the Service began collecting inspection fees in February 1986,
we have been unable to achieve full cost recovery as several categories
of importers and exporters have been exempt from paying fees, and fees
were not established at levels that would cover all costs of the
services provided to the trade community. Inspection fees currently
recover less than half the costs of the inspection program. Exempt
businesses have included most noncommercial importers/exporters;
companies dealing in specific captive-bred or personally trapped furs,
meat from bison, ostrich, and emu, and aquacultured sturgeon food
items; and circuses.
The inspection fee schedule in Sec. 14.94 we are modifying has been
in place since 1996. These fees were calculated based solely upon the
salary and benefits of a journeyman-level wildlife inspector and did
not attempt to recover other costs of conducting compliance inspections
and providing clearance services to the wildlife trade community.
Before the effective date of this final rule, commercial importers or
exporters (i.e., entities that hold a Service import/export license)
have paid a flat rate of $55 per shipment for inspections at designated
ports during normal working hours. Additional per-hour charges have
been applied when inspections are conducted outside normal working
hours; non-licensees receiving inspections outside normal working hours
also paid these hourly charges.
All importers or exporters, whether licensed or not, have paid a
$55 administrative fee for inspections at a staffed nondesignated port,
plus a 2-hour minimum of $20 per hour for inspections during normal
working hours. Higher hourly charges applied to inspections outside
normal working hours. Importers and exporters whose inspections occur
at nondesignated ports that are not staffed by Service inspectors have
been charged all costs associated with providing the inspection,
including salary, travel, transportation, and per diem costs.
Under this final rule, the inspection fee structure consists of a
flat rate base inspection fee based upon the type of port ($85 for
designated ports or ports acting as designated ports; $133 for staffed,
nondesignated ports; and $133 for nonstaffed, nondesignated ports) that
reflects the recovery of specific direct and indirect costs; and two
premium inspection fees, each $19, reflecting additional labor costs
associated with specific types of commodities. The inspection fee
structure also provides for overtime fees. The inspection fees
[[Page 74620]]
reflect the cost of the services provided for routine shipments,
shipments that contain species that are protected by Federal law or
international treaty, and shipments that contain live specimens.
Routine shipments are charged a base inspection fee based upon the type
of port. Shipments containing protected species or live specimens are
charged a premium inspection fee in addition to any applicable base
inspection fee. If a shipment contains both protected species and live
specimens, we charge two premium inspection fees in addition to any
applicable base inspection fee.
For commercial shipments at designated ports, our regulations have
required an inspection fee of $55. The new inspection fee structure
requires an $85 base inspection fee for inspections at these ports.
Upon the effective date, these shipments are subject to an additional
$30 in inspection fees per shipment (a change from $55 to $85) in 2008
under the new fee structure. A further increase of $8 is spread out
over the next 4 years (2009-2012), to yield an inspection fee of $93 in
2012 for a routine shipment at a designated port. For fiscal year 2005,
approximately half of the shipments at designated ports did not contain
species that are protected by Federal law or international treaty or
live specimens and would be considered routine shipments under these
regulations.
In addition to the nonstaffed, nondesignated port base inspection
fee ($133 in 2008, rising to $145 by 2012), all importers or exporters
who use these types of ports will be required to pay any associated
travel and per diem expenses needed for our wildlife inspector to
conduct an inspection at these ports. Until this final rule becomes
effective, our current regulations require importers or exporters who
use these types of nonstaffed ports to pay these travel and per diem
expenses, plus the salary of the wildlife inspector conducting the
inspection, in addition to a base hourly administrative fee. However,
the new fee structure simplifies the fees for a nonstaffed,
nondesignated port to consist of a flat rate base fee of $133 in 2008
to use these ports, which incorporates the salary of the wildlife
inspector conducting the inspection, in addition to any travel and per
diem costs. Importers and exporters using this type of port are also
responsible for payment of premium fees if their shipment includes live
or protected specimens, as is the case at the other types of ports.
We are publishing 5 years' worth of fees, for the period 2008-2012,
and applying an inflation factor to the base fees, premium fees, and
overtime fees. Throughout the 5-year period, we will increase the base
inspection fees annually, based upon inflation, using the Gross
Domestic Product (GDP) indices. We will increase the premium inspection
fees gradually over the 5-year period, reflecting both inflation and a
gradual move to 100-percent cost recovery. Because we are publishing
these inspection fee changes for a 5-year period, importers and
exporters of wildlife can incorporate these fee increases into their
budget planning. Within the 5-year period, we will publish a proposed
rule on inspection fees that will be effective for the year 2013 and a
number of years beyond, to be determined. In the event the rulemaking
establishing inspection fees for 2013 and beyond is delayed beyond
December 31, 2012, the inspection fees in this final rule for the year
2012 will be in effect for the year 2013 and beyond, as needed, until
the updated rulemaking is finalized.
Comments on Our Proposed Changes to Sec. 14.94
We received 39 comments on the proposed changes to the inspection
fees. Thirty-four comments were generally opposed to the increased
fees, although several commenters acknowledged the need to recover
increasing costs. Three commenters strongly supported the increase in
inspection fees, and two commenters indicated they had no concerns with
the fees because they recognized the need to recover increased costs.
As previously mentioned, we must make the wildlife trade compliance
program as self-sustaining as possible. The collection of inspection
fees currently funds approximately 40 percent of the inspection
program. The remainder is funded through limited appropriated funds. We
do not consider it proper to pass these increased costs on to the
general public who are not the primary beneficiaries of these services.
In order to maintain the same level of inspection services, we have no
option but to raise inspection fees and move toward achieving cost
recovery from the trade for the compliance portion of the inspection
program.
Many of the commenters opposed to the increased fees represent
industries that do not import or export routine wildlife shipments, but
import or export shipments which require additional specialized
services for live or protected species. In our economic analysis, we
determined that approximately 50 percent of the shipments imported or
exported at designated ports were live or protected species and thus
would be subject to these increased premium fees. We do not consider it
equitable to require the other half of the trade to pay even more fees
in order to spread out the costs of these additional specialized
services.
Other commenters opposed to the increased fees are currently exempt
from fees and wish to remain exempt. As we state above, we must still
provide services to these industries and we do not find it equitable
that nonexempt businesses must pay more than their share of the costs
in order for us to recover the costs not paid by exempt businesses. We
realize that increases in inspection fees will increase the upfront
cost of doing business. In the past, however, many businesses were
subsidized by taxpayers and were not charged.
We received 16 comments stating that the new fees will discourage
small shipments. We are aware that some businesses may run on a very
low profit margin. This may be particularly true when importing or
exporting a limited number of wildlife specimens. While the inspection
fee increase is not intended to restrict or eliminate the international
trade of wildlife, it may have an economic effect on those dealing in
small shipments or transactions. However, the Service must expend time
and resources to process these shipments. In addition, the costs of
providing services to the international wildlife trade community are
not dependent upon the size of the shipment.
It may be necessary for some businesses to reassess how they are
conducting their activities to ensure that the most productive and
efficient procedures are being used. While the Service understands that
the increased inspection fees may impact some businesses, we must raise
the inspection fees to ensure that we can adequately address our
responsibilities under various wildlife laws and regulations. We do not
anticipate that these inspection fees will greatly affect the number of
specimens in international trade, although the number of shipments may
be reduced due to consolidation.
Some commenters proposed that we exempt small businesses or
establish a minimal processing fee. As we stated earlier in the rule,
the majority of businesses importing and exporting wildlife are
considered small businesses. The base inspection fees cover the basic
minimum service we provide. Our inspection fee costs are calculated to
represent average costs of providing the service. We cannot predict or
control the frequency of
[[Page 74621]]
unusually small importations or exportations. To ensure that our basic
costs are always covered, we charge the base inspection fee. At a
minimum, any service we provide involves a fixed set of costs. These
fixed costs include the direct costs of providing the service and the
indirect costs of support providing the service. We cannot establish a
lower minimum fee, because doing so would prevent us from recovering
the full costs of providing the services.
Two commenters stated that the proposed inspection fees should have
a sliding scale based upon the value or the quantity of specimens in a
particular shipment. The base inspection fees resulting from our
economic analysis apply to all shipments of wildlife regardless of
quantity or value of specimens in a particular shipment. We calculated
the average costs of providing the service. Therefore, some of the
inspection fees may appear too high or too low based upon an
individual's experience, but in fact the fees represent the average
cost of providing the service for the type of shipment and type of
port.
There is no direct correlation between the number of wildlife items
in a shipment or the value of the shipment and the complexity of the
inspection or costs of services that we must provide. A fee based upon
quantity or value would automatically overcharge many large or high-
value shipments and undercharge shipments of low value or quantity.
Importers importing their routine shipment should not be required to
bear the higher costs associated with inspections of live or protected
species shipments simply because their routine shipment contains more
specimens or specimens of a higher value.
We received one comment stating that inspection fees should
distinguish between dealers and collectors. Imports and exports for
personal use are exempt from base inspection fees at designated ports
or ports acting as designated ports. If, however, collectors are
importing and exporting for commercial purposes, including trade and
barter, then they must be licensed and pay appropriate fees. For
example, collectors who import small numbers of specimens that are
promptly sold over the Internet are operating in no less of a
commercial manner than is a dealer in wildlife specimens. In addition,
the cost of providing services to a collector is no different than the
cost of providing such services to a dealer. We consider it unfair to
require dealers and other members of the wildlife trade community to
bear a disproportionate share of the costs in order to exempt
collectors. We therefore are making no changes to the rule based upon
this comment.
We received seven comments opposed to the proposed premium
inspection fee for shipments containing live specimens or protected
species. The inspection of shipments that contain live specimens
requires considerably more knowledge, time, and equipment than is
required for a routine shipment. In addition to the increased time
required for inspection of the shipment, and oftentimes the need for
additional officers, the inspection of these premium shipments in many
cases requires the use of equipment that ensures the safety of the
wildlife inspector conducting the inspection. Inspection of shipments
containing protected species also requires considerably more time and
knowledge. In addition, the costs of services supporting these types of
shipments are considerably higher than for routine shipments.
The majority of commenters stated that the time it takes to inspect
their shipment is no more than for other shipments and that any
``rookie'' could inspect their shipment. Other commenters indicated
that the fees represented an unfair allocation of the costs to the
Service or were not related to our costs. Other commenters felt the
fees unfairly targeted certain segments of the trade. We calculated the
average time to inspect these premium shipments, which on average is
considerably longer than for a routine shipment. The time includes pre-
inspection research and document review often conducted with the
assistance of senior inspectors, as well as the actual physical
inspection of the shipment.
Since the costs have been averaged for all shipments of a
particular premium type, some users may view the fees as higher than
the costs for their individual shipment. Under the current system, the
higher costs to process these premium shipments are borne predominantly
by the taxpayers but also by importers and exporters dealing in non-
premium shipments. As stated in the proposed rule, these fees reflect
both the increase in costs as well as the inclusion of cost components
that had not been included before. This rule seeks to recover the costs
associated with these special services and equipment from those
directly responsible for the shipments. Therefore, we feel that the
premium fees for live and protected specimens are warranted and have
been set at reasonable levels. See Sec. 14.94(f) for a definition of
premium fees.
We received one comment that the travel and per diem costs
associated with a nonstaffed nondesignated port were unfair if there
were multiple importers and exporters requesting inspection at the same
time. The commenter suggested that we prorate travel and per diem
expenses when multiple importers or exporters are involved. We agree
with the commenter and have updated the regulations to reflect this
change. Although this circumstance is rare, we will charge prorated
travel, transportation, and per diem costs when a wildlife inspector
travels to process shipments for multiple importers or exporters at the
same location. However, each shipment will be assessed the
nondesignated port base inspection fee and, if applicable, the
appropriate premium inspection fees.
We received two comments suggesting that we ``abandon normal work
schedules'' for wildlife inspectors thus eliminating the need for
overtime charges. The majority of activities involving the clearance of
imports and exports, such as working with customs brokers and CBP, in
addition to frequent communication with the regulated public, are
conducted during normal business hours. We recognize, however, that
some shipments, particularly those with live specimens, are imported or
exported outside normal business hours. The Service does not have the
staff resources to provide regular service 7 days a week, 24 hours a
day, at all locations. In addition, other Federal inspection service
agencies do not work these hours without charging overtime.
However, in several locations, our wildlife inspectors do work
shifts to process express shipments. Under Federal law, we must
compensate wildlife inspectors who regularly work overtime hours. In
order to recover the costs for these additional salary and benefit
expenses, whether our inspectors are working overtime or are working a
normal shift during generally understood overtime hours, we must have
the users of these overtime services compensate the government through
overtime charges. We believe it is more equitable to have the importers
and exporters of after hours shipments pay for these additional
services rather than requiring higher fees for all shipments.
We received five comments questioning how the proposed overtime and
inspection fees apply to multiple shipments. As we previously stated,
and is currently the practice, if an importer or exporter has multiple
shipments at the same time and the same location, they will only be
assessed one overtime fee for the inspection of those shipments.
However, we will assess each shipment the appropriate base
[[Page 74622]]
inspection fee and, if applicable, the appropriate premium inspection
fees.
Calculation of Inspection Fees
As stated in the proposed rule, we conducted an economic analysis
of the costs associated with the services provided to the legal
wildlife trade community, and we created an inspection fee template
(Sec. 14.94(h)) that formed the basis for the determination of this
inspection fee increase. The economic analysis used data on shipment
types and quantities, inspection times required for different types of
shipments, and direct and indirect costs associated with the services
provided to the legal wildlife trade community.
In order to calculate these inspection fees, we analyzed the actual
total costs of providing services to the legal wildlife trade community
during fiscal year 2005 as compared to the actual total money that we
collected for activities authorized by the wildlife inspection program
during fiscal year 2005.
The total costs include wildlife inspector salaries and benefits;
the appropriate portion of our managers' salaries and benefits; direct
costs such as vehicle operation and maintenance, equipment purchase and
replacement, data entry and computer support for the Service's
electronic filing system, communications costs, office supplies,
uniforms, and administrative costs; and indirect costs such as office
space. We calculated these costs using a Service-wide standard of 22
percent of direct costs. The total cost of providing services to the
legal wildlife trade community during fiscal year 2005 was $20,083,627.
The total amount of money that we collected for activities
authorized by the wildlife inspection program during fiscal year 2005
was $8,724,289. This total includes application fees for import/export
licenses, designated port exception permits, and CITES permits and
certificates, as well as inspection and overtime fees. At the time of
our analysis, our data did not distinguish between license and permit
fees and inspection fees. However, it is readily apparent that whatever
portion of this total is derived from inspection fees, it falls well
below the $20,083,627 we spent on the wildlife trade compliance program
during fiscal year 2005. Subsequent to the proposed rule, we instituted
a revenue tracking system to separate inspection fees, including
overtime, from designated port exception permit application fees and
CITES document application fees.
The inspection of shipments that contain species protected by
Federal law or international treaty or live specimens requires
considerably more knowledge, time, and equipment than is required for a
routine shipment. In addition to the increased time required for
document inspection and handling of the shipment, the inspection of
these ``premium'' shipments requires more thorough knowledge of Federal
law or international treaty, or, in the case of shipments containing
live specimens, the use of equipment that ensures the safety of the
wildlife inspector conducting the inspection. Inspection of live
shipments routinely requires the services of more than one wildlife
inspector and may also require timely consultation with outside
experts.
In addition, there are other costs associated with the inspection
of premium shipments. In many instances, foreign documents that are
presented for clearance of shipments containing protected species under
CITES must be verified with foreign governments, a process that can be
extremely time consuming. These foreign documents must be stored and
recorded in our electronic database. Data on shipments containing
wildlife protected under CITES must be analyzed for quality and
reported internationally on an annual basis as one of our obligations
as a party nation to this international treaty.
Since the trade compliance portion of the wildlife inspection
program is to be ``self-sustaining to the extent possible,'' we created
an inspection fee structure that will provide 100-percent cost recovery
by the end of the 5-year period 2008-2012. If we had developed an
inspection fee structure to provide 100-percent cost recovery
immediately, the initial premium fees would have been substantially
higher than the premium fees described in this final rule.
During the development of the inspection fee structure, we
estimated the inflation rate based upon the GDP. The GDP indices are
obtained from the Economic Report of the President, which projects the
growth of real GDP. For the 5-year period covered in this final rule,
the GDP indices were as follows: 2.1 percent for 2008, 2009, and 2010,
and 2.2 percent for 2011 and 2012. We decided to use inflation using
the GDP indices as the only factor contributing to the increased costs
by the end of the 5-year period. This is a conservative approach since
wildlife inspector salaries and benefits could increase at a
substantially greater rate than inflation by the end of the 5-year
period. While salaries may increase consistent with inflation,
promotions would increase salaries considerably more than inflation.
In order to calculate these inspection fees, we estimated what the
fiscal year 2005 base inspection fees and premium inspection fees would
need to be to provide 100-percent cost recovery by the end of the 5-
year period, and inflated those fees to 2008 dollars. We used this
approach, because this rulemaking will not be finalized until 2008, and
if, at that time, we used 2005 dollars consistent with actual total
costs during fiscal year 2005, 100-percent cost recovery by the end of
the 5-year period would not be possible.
It is extremely difficult to estimate what portion of the money we
collected for activities authorized by the wildlife inspection program
was derived from travel and per diem expenses and overtime fees we
received. Currently, our data do not distinguish between license and
permit fees and inspection fees. However, these amounts are a very
small portion of the total amount that is derived from inspection fees,
and will have little impact on the total amount of money that we
collect for activities authorized by the wildlife inspection program.
Therefore, during the development of the inspection fee structure, we
decided not to include overtime fees or salary, travel, and per diem
expenses collected at a nonstaffed, nondesignated port.
During the development of the inspection fee template, we
considered the impact that increased inspection fees would have on
small businesses. Essentially all of the businesses that engage in
commerce by importing or exporting wildlife are considered small
businesses according to the Small Business Administration (SBA).
Examples of some of these businesses can be placed in the following SBA
categories: ``Zoos and Botanical Gardens,'' with an SBA size standard
of $6.0 million in average annual receipts; ``Merchant wholesalers,
nondurable goods,'' with an SBA size standard of 100 employees;
``Leather and allied product manufacturers,'' with an SBA size standard
of 500 employees; and ``Clothing and Clothing Accessories Stores,''
with an SBA size standard ranging from $6.0 million to $7.5 million in
average annual receipts.
Since essentially all of these businesses are small, we believe
that those companies that deal with more complex shipments requiring
additional services from us, such as those containing species that are
protected by Federal law or international treaty or live specimens,
should assume a greater share of the costs associated with the
additional services. The alternative is to
[[Page 74623]]
spread these additional costs among all importers and exporters.
To help determine how realistic our inspection fee increases are,
we calculated what the inspection fees in place since 1996 would be
equal to in the beginning of and by the end of the 5-year period, based
only on inflation using the GDP indices. This calculation yielded an
inspection fee of $70 for 2008, and an inspection fee of $76 by the end
of the 5-year period in 2012. Both of these projected fees are quite
close to the base inspection fee of $85. Recognizing that the 1996
inspection fees were based only on the salary and benefits of a
journeyman-level wildlife inspector and did not take into account all
of the other costs associated with the services provided to the legal
trade community, we think the base inspection fee, which is based on
all of the associated costs of the wildlife inspection program, is
reasonable.
Comments on Calculation of Inspection Fees
We received one comment suggesting that the Service's Office of Law
Enforcement should have a better way to track import/export license,
CITES permit, and inspection fees. We agree with the commenter and have
already implemented internal controls to track these fees since the
publication of the proposed rule.
We received one comment stating that the Service did not address
the criteria under the User Fee Statute when establishing the new
inspection fees. We disagree. As stated previously, the criteria under
the User Fee Statute include that the fees be fair, and that they be
based upon actual costs to the government, the value of the service to
the recipient, and public policy or interests that are being served. We
consider these fees to be fair for reasons stated in this final rule.
The fees reflect the actual cost to the government for the specific
services provided, and they were established at levels that will
provide 100-percent cost recovery for the wildlife trade compliance
program, as authorized by the User Fee Statute. In addition, if we do
not increase inspection fees, funds will not be available to continue
to provide inspection services at a level sufficient to meet customer
demand.
Exemptions to Inspection Fees (New Section, Sec. 14.94(k))
During the development of the inspection fee template, we decided
that some individuals or organizations, or certain commodities, should
continue to be exempt from inspection fees. These longstanding
exemptions reflect the lack of regular inspection services provided and
the limited numbers of shipments for which services are required.
Government agencies at the Federal, State, local, or tribal level
have been exempt from inspection fees in the past and will continue to
be exempt from the inspection fees, including overtime fees. The
retention of this exemption complements other Service regulations.
Individuals who import or export shipments of 100 or fewer raw furs
or raw, salted, or crusted mammal hides or skins between the United
States, Canada, or Mexico have been exempt from inspection fees in the
past and will continue to be exempt from designated port base
inspection fees. However, this exemption applies only to shipments of
mammal furs, hides, or skins lawfully taken from the wild by those
individuals or their family members in the United States, Canada, or
Mexico, from species that are not protected under parts 17, 18, or 23
of title 50. These individuals will still require an import/export
license and be responsible for overtime fees for any shipments
inspected outside normal working hours.
Individuals or organizations that import or export shipments of
wildlife for noncommercial purposes at designated ports that do not
contain species that are protected by Federal law or international
treaty, along with individuals or organizations that import or export
live specimens, will continue to be exempt from designated port
inspection fees. These individuals or organizations will still be
responsible for overtime fees for any shipments inspected outside
normal working hours, as well as all fees for import or export through
a nondesignated port.
Individuals or organizations that import or export shipments of
wildlife for noncommercial purposes at designated ports that contain
species that are protected by Federal law or international treaty,
along with individuals or organizations that import or export live
specimens, will pay premium inspection fees when importing or exporting
via air, ocean, rail, or truck cargo. However, these shipments will
continue to be exempt from base inspection fees. Examples of these
individuals or organizations would include but not be limited to:
individuals importing or exporting personal pets that may or may not be
protected species; hunters importing or exporting protected game
species; or public museums, zoos, and scientific or educational
institutions importing or exporting protected species or live
specimens.
Inspection of these premium shipments requires considerably more
knowledge, time, and equipment than is required for a routine shipment.
It should be noted that the Service does not consider these individuals
or organizations to be exempt from paying for other services that
provide benefits. Our regulations in part 13 already require
individuals or organizations to pay application fees for permits that
authorize them to engage in activities not otherwise authorized for the
general public. We note that other agencies do not make a distinction
between commercial and noncommercial individuals or organizations when
considering inspection fees for import and export. Based upon these
findings, we decided to charge premium fees but exempt these shipments
from base inspection fees as long as the shipments are imported or
exported through a designated port. These shipments will continue to be
subject to overtime fees and all fees for import or export through a
nondesignated port.
Individuals or organizations who import or export shipments that
contain protected species or live specimens for noncommercial purposes
at designated ports by using the mail, by traveling as passengers, or
by using a personal vehicle will be exempt from designated port base
inspection fees and premium inspection fees. However, they will still
be responsible for overtime fees for any inspections that take place
outside normal working hours. These shipments are currently exempt from
designated port inspection fees other than overtime charges. We decided
to retain this exemption under these circumstances because we do not
consistently provide inspection services at mail facilities or
passenger terminals, or for personal vehicles.
Until the effective date of this final rule, our regulations exempt
certain captive-bred mammals from designated port inspection fees as
part of an exemption from the import/export license requirements. With
this final rule, however, we are establishing the import/export license
requirement for these types of shipments. Although most businesses have
not taken advantage of the exemption as discussed earlier, any exempted
shipments still require inspection and clearance. This exemption has
also had the unintended consequence of creating a monetary incentive to
falsely declare certain mammals and their products as captive-bred.
By policy, we currently exempt the export of sturgeon and
paddlefish that are captive-bred in aquaculture facilities from
inspection fees, including
[[Page 74624]]
nondesignated port fees, if the shipments are for immediate human or
animal consumption. This exemption applies to caviar, meat, and other
food items, but does not cover live fish. By policy, we also currently
exempt the export of American bison, ostrich, and emu meat produced in
ranching operations in the United States from inspection fees if the
meat is intended for human consumption. All of these shipments still
require inspection and clearance by us.
Our ability to effectively provide inspection and clearance
services and the necessary support for these services depends on
inspection fees. When we exempted these types of shipments from
inspection fees, the costs associated with inspection and clearance
have been borne either by the taxpayers through appropriated funds or
by other importers and exporters. The services provided to these exempt
businesses are specialized services that do not directly benefit the
public as a whole and, as such, the costs should not be borne by the
taxpayer. As discussed earlier, the majority of importers and exporters
of wildlife are small businesses. We do not believe it equitable that
nonexempt businesses must pay more than their share of the costs in
order for us to recover the costs not paid by exempt businesses.
Comments on Sec. 14.94(k)
We received one comment regarding our proposed retention of the
exemption for individuals or organizations who import or export
shipments that contain protected species or live specimens for
noncommercial purposes at designated ports by using the mail, by
traveling as passengers, or by using a personal vehicle. The commenter
stated that passengers on international flights should be assessed
premium inspection fees since the majority of these shipments contain
protected species. We disagree with this comment and will retain the
exemption as proposed. As we stated earlier, we do not consistently
provide inspection services for noncommercial shipments imported or
exported at mail facilities or passenger terminals, or by personal
vehicles.
One commenter specifically opposed retaining the exemption for
individuals who import or export shipments of 100 or fewer raw furs or
raw, salted, or crusted mammal hides or skins between the United
States, Canada, or Mexico. Two other commenters generally opposed the
retention and stated that if cost recovery was our objective, then we
should remove all exemptions. One commenter stated that this exemption
could allow unscrupulous businesses to break up their shipments to get
around license fees. One commenter approved of the continuation of this
exemption, while two commenters requested that we extend the current
exemption from inspection fees for shipments of raw furs or raw,
salted, or crusted hides or skins to include shipments of processed or
manufactured furs of similar size and value. We decline to accept the
recommendations made in these comments.
The current exemption from inspection fees for shipments consisting
of raw furs or raw, salted, or crusted hides or skins, or separate fur
or skin parts lawfully taken from the wild in the United States,
Canada, or Mexico, is intended to provide assistance to subsistence
hunters and trappers. We believe retention of this exemption is
warranted. However, when we consider the difficulties that are inherent
in subsistence hunting, we do not think that commercial importers or
exporters of processed or manufactured furs should be entitled to the
same assistance extended to subsistence hunters. Finally, we have the
ability to monitor the volume of importing and exporting by a business
or individual and have not detected any abuse of this exemption.
Therefore, we are making no changes to the rule based upon these
comments.
We received four comments from the U.S. white sturgeon farming
community stating that we should not remove the exemption from
inspection fees for exports of sturgeon and paddlefish that are
captive-bred in aquaculture facilities and are intended for immediate
human or animal consumption. We also received four comments in favor of
removing the exemption. Two commenters in favor stated that the
businesses required inspection services and should therefore pay for
this service as do other importers and exporters. Two other commenters
stated that if cost recovery was our objective, then we should remove
all exemptions.
The commenters opposed to the removal of the exemption argued that
since the species are farmed, they are not wildlife and are not subject
to the fees. The commenters also stated that poaching is already
controlled at the source and farming protects endangered species by
decreasing pressure on wild stock. Though we recognize that farming of
white sturgeon may relieve pressure on wild stocks, we would remind the
commenters that the ESA, under which permission must be obtained to
engage in the business of importing or exporting wildlife, defines
wildlife to include specimens that are born or bred in captivity. In
addition, CITES requires CITES documents for international trade of all
sturgeon and paddlefish regardless of whether the species are captive-
bred. Finally, the commenters argued that the proposed new fees were
too high. See the preamble discussion on the inspection fee schedule
(Our Changes to Inspection Fees (Sec. 14.94--What fees apply to me?))
for additional discussion of fees.
As stated above, we currently exempt the export of sturgeon and
paddlefish that are captive-bred in aquaculture facilities from
inspection fees, including nondesignated port fees, if the shipments
are for immediate human or animal consumption. However, these shipments
still require inspection and clearance by us, and exporters often use
ports with little or no staff available. As we have previously stated,
we do not find it equitable that nonexempt businesses must pay more
than their share of the costs in order for us to recover the costs not
paid by exempt businesses.
Since foreign sturgeon aquaculture facilities must pay inspection
fees when their goods are imported, removal of the exemption for
domestic businesses will establish a level playing field. Therefore, we
are removing the inspection fee exemption for businesses that export
food items derived from aquacultured sturgeon and paddlefish.
Four commenters supported the elimination of the inspection fee
exemption for businesses that export meat from American bison, ostrich,
and emu. Two commenters stated that if cost recovery was our objective,
then we should remove all exemptions. One commenter stated that those
who utilize the inspection services must bear the cost, while another
commenter stated that these businesses require inspection and clearance
and are operating commercially.
We agree with the commenters. As we have stated throughout this
final rule, we do not find it equitable that nonexempt businesses must
pay more than their share of the costs in order for us to recover the
costs not paid by exempt businesses. In addition, since both imports
and re-exports with an origin other than the United States are subject
to the inspection fees, removal of the exemption for domestic
businesses will establish a level playing field. Therefore, we are
removing the inspection fee exemption for businesses that export food
items derived from ranch-raised American bison, ostrich, and emu.
Other Relevant Comments
We received one comment stating that the regulations should contain
a
[[Page 74625]]
provision that would allow prior disclosures to be made without penalty
if non-compliance is found internally by businesses. As we stated in
our final rule of August 23, 2007 (72 FR 48401), on the implementation
of CITES, we cannot accept this recommendation because this provision
would undermine our enforcement efforts and our obligations under
international and domestic laws. We treat specimens traded contrary to
law the same as other forms of illegally traded goods.
We received 22 comments regarding an exemption from all Service
import or export requirements for ranch-raised elk and deer and their
products of Canadian origin. The commenters suggested we could reduce
our costs by exempting their commodities from regulation. We also
received one comment requesting that shipments containing mother of
pearl products should be exempt from all Service import or export
requirements.
The only wildlife species completely exempt from Service import/
export requirements are domesticated species that have become modified,
through selective breeding and a long historical association with
humans, from the wild species from which they were derived. The
domesticated species can differ from the wild species in color, form,
function, and/or behavior to such an extent that the domesticated
species is unable to survive in the wild without human care. The
Service does not consider ranch-raised elk and deer or mother of pearl
to meet these requirements. In addition, granting an exemption for
products only of Canadian origin might create a protectionist effect
for Canadian goods.
We received one comment stating that the Service should reduce or
eliminate inspection fees for the import and export of dead insect
specimens. We decline to adopt this suggestion. As stated in our
proposed rule, the goal of this fee increase is to recover the costs of
the compliance portion of the Service's wildlife inspection program. We
do not consider it to be fair or equitable for importers or exporters
of wildlife other than dead insect specimens to bear the additional
costs incurred by reducing or eliminating fees for dead insect
specimens. These shipments require inspection and clearance by us as do
all other wildlife shipments; therefore, we are making no changes to
the rule based upon this comment.
We received one comment requesting that the funds collected by the
Service remain in the port where they are collected. The commenter
indicated that some ports receive subsidized funding from customs
brokers associations. We decline to adopt this recommendation.
Inspection fees monies are collected to support the entire import/
export compliance program, and not all of the costs are resident in a
particular port. We note that the Service does not receive any funding
from customs brokers associations.
One commenter questioned whether this rule applied to plants, and
requested confirmation of any other changes involving hunting and
fishing, other than the need for individuals or organizations that
import or export shipments for noncommercial purposes that contain
protected species to pay premium fees. This rule applies only to fish
and wildlife as defined in 50 CFR 10.12 and does not apply to plants.
With respect to additional provisions that might affect hunting or
fishing, the commenter should read Sec. 14.91, which provides examples
of license requirements related to hunters and taxidermists.
One commenter suggested that the Service should eliminate
inspections on Canada-U.S. shipments except for CITES species. We
decline to adopt this suggestion. The Service must enforce the ESA. The
ESA provides us with broad authority to regulate the import and export
of fish and wildlife through licensing importers and exporters,
inspecting shipments, and charging and retaining reasonable fees for
processing applications and performing inspections. This authority is
not limited to endangered or threatened species or those protected
under CITES. As previously stated, this broad authority requires
importers and exporters who wish to engage in the international trade
of wildlife to obtain permission to do so. Eliminating inspections of
shipments to and from Canada would undermine our obligations under U.S.
law and would unfairly discriminate against shippers trading with
countries other than Canada.
Required Determinations
Regulatory Planning and Review (Executive Order 12866)
The Office of Management and Budget (OMB) has determined that this
rule is not significant under Executive Order 12866 (E.O. 12866). OMB
bases its determination upon the following four criteria:
(a) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(c) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(d) Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
This final rule will not have a significant economic effect on a
substantial number of small businesses as defined under the Regulatory
Flexibility Act. An initial Regulatory Flexibility Analysis is not
required. Accordingly, a Small Entity Compliance Guide is not required.
During the development of the inspection fee template, we considered
the impact that increased inspection fees would have on small
businesses. Essentially all of the businesses that engage in commerce
by importing or exporting wildlife or wildlife products would be
considered small businesses according to the Small Business
Administration (SBA). Examples of some of these businesses can be
placed in the following SBA categories: ``Zoos and Botanical Gardens,''
with an SBA size standard of $6.0 million in average annual receipts;
``Merchant wholesalers, nondurable goods,'' with an SBA size standard
of 100 employees; ``Leather and allied product manufacturers,'' with an
SBA size standard of 500 employees; and ``Clothing and Clothing
Accessories Stores,'' with an SBA size standard ranging from $6.0
million to $7.5 million in average annual receipts.
This final rule will not have a significant economic effect on
these businesses. In most cases, the increased inspection fees will
represent a small fraction of the value of the affected wildlife
shipment. In addition, the small entities directly affected by this
final rule are not likely to bear the full burden of the inspection fee
increases because some or most of the cost increases will be passed on
to the purchasers of the wildlife.
Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))
This final rule is not a major rule under the Small Business
Regulatory Enforcement Fairness Act. This final rule:
a. Does not have an annual effect on the economy of $100 million of
more.
The removal of two exemptions from our import/export license
requirements for businesses that import or export certain captive-bred
mammals or their products and circuses that import or
[[Page 74626]]
export wildlife will not adversely affect those businesses.
For fiscal year 2005, our records indicate that 2,628 shipments of
captive-bred chinchilla, fisher, fox, marten, mink, muskrat, and nutria
were imported or exported by 351 businesses. However, 296 of these
businesses already have import/export licenses because they also trade
in species other than these captive-bred mammals. We are proposing that
the remainder of these businesses must obtain an import/export license,
at a cost of $100 per year. These changes will result in an additional
cost to these businesses of $5,500 as importers or exporters of these
captive-bred mammals or their products (351 - 296 = 55 businesses x
$100 = $5,500).
We estimate that approximately 30 circuses will import or export
animals during a given year. We are proposing that these circuses must
obtain an import/export license. These changes will result in an
additional cost to these circuses of $3,000 as importers or exporters
of circus animals.
The total cost to businesses and circuses based upon the removal of
two exemptions from our import/export license requirements will be
approximately $8,500.
We have determined that routine shipments must be charged a base
inspection fee based upon the type of port. Shipments containing
protected species or live specimens must be charged a premium
inspection fee in addition to the base inspection fee. If a shipment
contains both protected species and live specimens, we charge two
premium inspection fees in addition to the base inspection fee. The fee
structure requires an $85 base inspection fee for inspections at
designated ports and a $19 premium inspection fee.
The greatest increased costs contained in the fee structure apply
to wildlife shipments imported or exported at nonstaffed, nondesignated
ports. Assuming that every shipment we inspect occurs at one of these
ports, the total net annual economic effect in the worst-case scenario
will be approximately $20 million.
For inspections at these ports, our regulations have required an
administrative fee of $55 plus all costs associated with the inspection
and clearance, including salary, travel, and per diem for the wildlife
inspector conducting the inspection. The new fee structure requires a
$133 base inspection fee for inspections at these ports. Assuming that
every shipment at these ports contained species that are protected by
Federal law or international treaty and live specimens, these shipments
will require an additional $38 in premium inspection fees, for a total
of $171 per shipment.
The worst-case scenario for inspections at nonstaffed,
nondesignated ports, as described above, and not including travel and
per diem, will result in an additional $116 in inspection fees per
shipment (the difference between $171 and $55) under the new fee
structure. We estimate that we inspect approximately 170,000 shipments
per year nationwide. Assuming that all shipments are inspected at
nonstaffed, nondesignated ports, the net annual economic effect could
equal $19,720,000 under the new fee structure. While the new fee
structure of $133 to use these ports does require the additional
payment of travel and per diem expenses, it does not require the
additional payment of the salary of the wildlife inspector conducting
the inspection. In many cases, the base fee of $133 will be
considerably less than the salary of the wildlife inspector conducting
the inspection.
In reality, nearly one-half of our inspections are conducted at
designated ports for shipments that do not contain species that are
protected by Federal law or international treaty or live specimens, so
the net annual economic effect of the new fee structure is considerably
less than $19,720,000. For commercial shipments at designated ports,
our regulations have required an inspection fee of $55. The new fee
structure requires an $85 base inspection fee for inspections at
designated ports. These shipments will result in an additional $30 in
inspection fees per shipment (the difference between $85 and $55) under
the new fee structure. For fiscal year 2005, we inspected 83,203
shipments at designated ports that did not contain species that are
protected by Federal law or international treaty or live specimens. The
net annual economic effect for inspections of these shipments will/
could equal $2,496,090 under the new fee structure.
As described above, the removal of two exemptions from our import/
export license requirements for businesses that import or export
certain captive-bred mammals or their products and circuses means that
these entities must pay inspection fees authorized under their import/
export license.
For fiscal year 2005, our records indicate that 2,628 shipments of
certain captive-bred mammals or their products were imported or
exported by 351 businesses. These new regulation changes will result in
an additional cost to these businesses of $223,380 when they import or
export shipments of certain captive bred mammals or their products at
designated ports (2,628 shipments x $85 base inspection fee at
designated ports).
Our records indicate that, at most, there could be 75 shipments of
circus animals imported or exported during a given year by
approximately 30 circuses. Circuses will likely be assessed two premium
inspection fees per shipment, since most of their shipments will
contain live specimens that are protected by Federal law or
international treaty. Under the worst-case scenario, these changes will
result in an additional cost to these circuses of $9,225, when they
import or export circus animals at designated ports (75 shipments x $85
base inspection fee at designated ports + 75 shipments x $38 premium
inspection fee).
For fiscal year 2005, our records indicate that 7,800 shipments
that contained species that are protected by Federal law or
international treaty or live specimens were imported or exported for
noncommercial purposes at designated ports via air, ocean, rail, or
truck cargo. With the effective date of this final rule, these persons
must pay premium inspection fees for these shipments. In many cases,
these shipments will contain species that are protected by Federal law
or international treaty and live specimens. Under the worst-case
scenario, these changes will result in an additional cost to these
persons of $296,400, when they import or export these shipments at
designated ports (7,800 shipments x $38 premium inspection fee).
For fiscal year 2005, our records indicate that 145 shipments of
American bison, ostrich, emu, or sturgeon and paddlefish products were
exported. These changes will result in an additional cost to these
businesses of $12,325 when they export shipments of American bison,
ostrich, or emu meat at designated ports (145 shipments x $85 base
inspection fee at designated ports).
The total cost to businesses, circuses, and persons importing or
exporting species that are protected by Federal law or international
treaty or live specimens for noncommercial purposes, based upon the
removal of license fee exemptions, will be approximately $541,330.
Considering that nearly one-half of the shipments that we inspect
account for an annual economic effect of just under $2.5 million, it is
safe to assume that all of the other types of shipments that we inspect
at all of our other ports, when combined with this amount, will total
far less than $100 million. The
[[Page 74627]]
removal of import/export license exemptions and inspection fee
exemptions accounts for an additional $549,830. To summarize, this
final rule will have an annual economic effect of far less than $100
million.
Though this final rule will not have an annual economic effect of
$100 million, we recognize that these fee increases will have a
negative effect on small entities. Since essentially all of the
businesses that engage in commerce by importing or exporting wildlife
would be considered small businesses, and considering that the wildlife
trade compliance program is to be ``self-sustaining to the extent
possible,'' we have no option but to raise inspection fees to cover the
increasing costs associated with the wildlife trade compliance program.
It would not be appropriate to pass these increased costs on to the
general public, who are not the primary beneficiaries of these
services.
b. Will not cause a major increase in costs or prices for
consumers; individual industries; Federal, State, or local government
agencies; or geographic regions.
This final rule will increase costs for individual industries and
potentially consumers; however, because the wildlife trade compliance
program is to be ``self-sustaining to the extent possible,'' we have no
option but to raise inspection fees to cover the increasing costs
associated with the wildlife trade compliance program. If we do not
increase inspection fees, funds will not be available to continue to
provide these services at a level sufficient to meet customer demand.
c. Does not have significant negative effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based companies to compete with foreign-based companies.
This final rule will not have significant adverse effects on the
ability of U.S.-based enterprises to compete with foreign-based
enterprises, because foreign-based enterprises that are subject to U.S.
jurisdiction must comply with the same regulatory requirements as U.S.-
based enterprises who import or export wildlife. In addition, this
final rule removes the exemption from an import/export license
requirements and payment of inspection fees for shipments of certain
captive-bred mammals or their products. Due to shipping and other
business practices, foreign-sourced mammals or their products imported
into the United States are more likely to be declared as captive-bred
and appropriate for the current exemption than exports of U.S.-sourced
mammals or their products. The removal of the exemption will result in
equal treatment of foreign-sourced and U.S.-sourced mammals or their
products.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
Under the Unfunded Mandates Reform Act:
a. This final rule will not significantly or uniquely affect small
governments. A Small Government Agency Plan is not required.
We are the lead Federal agency for implementing regulations that
govern and monitor the importation and exportation of wildlife and
carrying out the United States' obligations under CITES. Therefore,
this final rule has no effect on small governments' responsibilities.
b. This final rule will not produce a Federal requirement that may
result in the combined expenditure by State, local, or tribal
governments of $100 million or greater in any year, so it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act.
This rule will not result in any combined expenditure by State,
local, or tribal governments.
Executive Order 12630 (Takings)
Under E.O. 12630, this final rule does not have significant takings
implications. A takings implication evaluation is not required. Under
E.O. 12630, this final rule does not affect any constitutionally
protected property rights. This final rule will not result in the
physical occupancy of property, the physical invasion of property, or
the regulatory taking of any property.
Executive Order 13132 (Federalism)
Under E.O. 13132, this final rule does not have significant
Federalism effects. A Federalism evaluation is not required. This final
rule will not have a substantial direct effect on the States, on the
relationship between the Federal Government and the States, or on the
distribution of power and responsibilities among the various levels of
government.
Executive Order 12988 (Civil Justice Reform)
Under E.O. 12988, the Office of the Solicitor has determined that
this final rule does not overly burden the judicial system and that it
meets the requirements of sections 3(a) and 3(b)(2) of the Order.
Specifically, this final rule has been reviewed to eliminate errors and
ensure clarity, has been written to minimize disagreements, provides a
clear legal standard for affected actions, and specifies in clear
language the effect on existing Federal law or regulation.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This final rule does not contain any new information collection
requirements that require approval by the Office of Management and
Budget under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. OMB
has approved the information collection requirements contained in this
subpart I and assigned OMB Control Number 1018-0092, which expires on
November 30, 2010. The Service may not conduct or sponsor and you are
not required to respond to a collection of information unless it
displays a currently valid OMB control number.
National Environmental Policy Act
We analyzed this rule under the criteria of the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4332(C)) and part
516 of the Department of the Interior's Departmental Manual (DM),
Chapter 8. This final rule does not constitute a major Federal action
significantly affecting the quality of the human environment. An
environmental impact statement/assessment is not required.
A categorical exclusion from NEPA documentation applies to
publication of these amendments to our import/export regulations,
because the changes are technical and procedural in nature, and the
environmental effects are too broad, speculative, or conjectural to
lend themselves to meaningful analysis (516 DM 2, Appendix 1.10).
Concerning the actions that are the subject of this rulemaking, NEPA
has been complied with at the project level where each change was
developed. This is consistent with the Department of the Interior
instructions for compliance with NEPA where actions are covered
sufficiently by an earlier environmental document (516 DM 3.2A).
Executive Order 13175 (Tribal Consultation) and 512 DM 2 (Government-
to-Government Relationship With Tribes)
Under the President's memorandum of April 29, 1994, ``Government-
to-Government Relations with Native American Tribal Governments'' (59
FR 22951), E.O. 13175, and 512 DM 2, we have evaluated possible effects
on federally recognized Indian tribes and have determined that there
are no adverse effects. Individual tribal members must meet the same
regulatory requirements as other individuals who import or export
wildlife.
[[Page 74628]]
Executive Order 13211 (Energy Supply, Distribution, or Use)
On May 18, 2001, the President issued E.O. 13211 on regulations
that significantly affect energy supply, distribution, and use. E.O.
13211 requires agencies to prepare Statements of Energy Effects when
undertaking certain actions. This final rule will clarify the import/
export license and fee requirements, adjust the inspection fee
schedule, and update license and inspection fee exemptions. This final
rule is not a significant regulatory action under E.O. 12866, and it is
not expected to significantly affect energy supplies, distribution, and
use. Therefore, this action is a not a significant energy action and no
Statement of Energy Effects is required.
List of Subjects in 50 CFR Part 14
Animal welfare, Exports, Fish, Imports, Labeling, Reporting and
recordkeeping requirements, Transportation, Wildlife.
Regulation Promulgation
0
For the reasons described above, we are amending part 14, subchapter B
of chapter I, title 50 of the Code of Federal Regulations as set forth
below.
PART 14--IMPORTATION, EXPORTATION, AND TRANSPORTATION OF WILDLIFE
0
1. The authority citation for part 14 continues to read as follows:
Authority: 16 U.S.C. 668, 704, 712, 1382, 1538(d)-(f), 1540(f),
3371-3378, 4223-4244, and 4901-4916; 18 U.S.C. 42; 31 U.S.C. 9701.
0
2. Revise subpart I to read as follows:
Subpart I--Import/Export Licenses and Inspection Fees
Sec.
14.91 When do I need an import/export license?
14.92 What are the exemptions to the import/export license
requirement?
14.93 How do I apply for an import/export license?
14.94 What fees apply to me?
Subpart I--Import/Export Licenses and Inspection Fees
Sec. 14.91 When do I need an import/export license?
(a) The Endangered Species Act (16 U.S.C. 1538(d)(1)) makes it
unlawful for any person to engage in business as an importer or
exporter of certain fish or wildlife without first having obtained
permission from the Secretary. For the purposes of this subchapter,
engage in business means to import or export wildlife for commercial
purposes.
(b) Except as provided in Sec. 14.92, if you engage in the
business of importing or exporting wildlife for commercial purposes
(see Sec. 14.4), you must obtain an import/export license prior to
importing or exporting your wildlife shipment.
(c) The following table includes some examples of when an import/
export license is required:
------------------------------------------------------------------------
If I import into the United States or export . . . do I need an
from the United States import/export license?
------------------------------------------------------------------------
(1) Wildlife in the form of products such as Yes.
garments, bags, shoes, boots, jewelry, rugs,
trophies, or curios for commercial purposes.
(2) Wildlife in the form of hides, furs, or Yes.
skins for commercial purposes.
(3) Wildlife in the form of food for Yes.
commercial purposes.
(4) As an animal dealer, animal broker, pet Yes.
dealer, or pet or laboratory supplier.
(5) As an individual owner of a personally No.
owned live wildlife pet for personal use.
(6) As a collector or hobbyist for personal No.
use.
(7) As a collector or hobbyist for commercial Yes.
purposes, including sale, trade or barter.
(8) As a laboratory researcher or biomedical Yes.
supplier for commercial purposes.
(9) As a customs broker or freight forwarder No.
engaged in business as a dispatcher, handler,
consolidator, or transporter of wildlife or
if I file documents with the Service on
behalf of others.
(10) As a common carrier engaged in business No.
as a transporter of wildlife.
(11) As a taxidermist, outfitter, or guide Yes.
importing or exporting my own hunting
trophies for commercial purposes.
(12) As a taxidermist, outfitter, or guide No.
transporting or shipping hunting trophies for
clients or customers.
(13) As a U.S. taxidermist receiving a U.S. No.
client's personal hunting trophies after
import clearance for processing.
(14) As a U.S. taxidermist importing wildlife Yes.
from or exporting wildlife to foreign owners
who are requesting my services.
(15) As a foreign owner of wildlife exporting No.
my personal hunting trophies from the United
States to my home.
(16) As a circus for exhibition or resale Yes.
purposes.
(17) As a Federal, State, municipal, or tribal No.
agency.
(18) As a public museum, or public scientific No.
or educational institution for noncommercial
research or educational purposes.
------------------------------------------------------------------------
Sec. 14.92 What are the exemptions to the import/export license
requirement?
(a) Certain wildlife. Any person may engage in business as an
importer or exporter of the following types of wildlife without
obtaining an import/export license:
(1) Shellfish (see Sec. 10.12 of this chapter) and nonliving
fishery products that do not require a permit under parts 16, 17, or 23
of this subchapter, and are imported or exported for purposes of human
or animal consumption or taken in waters under the jurisdiction of the
United States or on the high seas for recreational purposes;
(2) Live farm-raised fish and farm-raised fish eggs of species that
do not require a permit under parts 16, 17, or 23 of this subchapter,
that meet the definition of ``bred-in-captivity'' as stated in Sec.
17.3 of this subchapter and that are for export only; and
(3) Live aquatic invertebrates of the Class Pelecypoda, commonly
known as oysters, clams, mussels, and scallops, and their eggs, larvae,
or juvenile forms, that do not require a permit under parts 16, 17, or
23 of this subchapter, and are exported only for the purposes of
propagation or research related to propagation; and
(4) Pearls that do not require a permit under parts 16, 17, or 23
of this subchapter.
(b) Certain persons.
(1) The following persons may import or export wildlife without
obtaining an import/export license, provided that these persons keep
records that will fully and correctly describe each importation or
exportation of wildlife made by them and the subsequent disposition
made by them with respect to the wildlife.
(i) Public museums, or other public, scientific, or educational
institutions, importing or exporting wildlife for noncommercial
research or educational purposes; and
(ii) Federal, State, tribal, or municipal agencies.
(2) Subject to applicable limitations of law, duly authorized
Service officers at
[[Page 74629]]
all reasonable times will, upon notice, be given access to these
persons' places of business, an opportunity to examine their inventory
of imported wildlife or the wildlife to be exported, the records
described in paragraph (1) of this section, and an opportunity to copy
those records.
Sec. 14.93 How do I apply for an import/export license?
(a) Application form. You must submit a completed FWS Form 3-200-3,
including the certification found on the form and in Sec. 13.12(a) of
this subchapter, to the appropriate regional Special Agent in Charge
under the provisions of this subpart and part 13 of this subchapter.
(b) Import/export license conditions. In addition to the general
permit conditions in part 13 of this subchapter, you must comply with
the following conditions:
(1) You must comply with all requirements of this part, all other
applicable parts of this subchapter, and any specific conditions or
authorizations described on the face of, or on an annex to, the import/
export license;
(2) You must pay all applicable license and inspection fees as
required in Sec. 14.94;
(3) You are responsible for providing current contact information
to us, including a mailing address where you will receive all official
notices the Service sends;
(4) You must keep, in a U.S. location, the following records that
completely and correctly describe each import or export of wildlife
that you made under the import/export license and, if applicable, any
subsequent disposition that you made of the wildlife, for a period of 5
years:
(i) A general description of the wildlife, such as ``live,'' ``raw
hides,'' ``fur garments,'' ``leather goods,'' ``footwear,'' or
``jewelry'';
(ii) The quantity of the wildlife, in numbers, weight, or other
appropriate measure;
(iii) The common and scientific names of the wildlife;
(iv) The country of origin of the wildlife, if known, as defined in
Sec. 10.12 of this subchapter;
(v) The date and place the wildlife was imported or exported;
(vi) The date of the subsequent disposition, if applicable, of the
wildlife and the manner of the subsequent disposition, whether by sale,
barter, consignment, loan, delivery, destruction, or other means;
(vii) The name, address, telephone, and e-mail address, if known,
of the person or business who received the wildlife;
(viii) Copies of all permits required by the laws and regulations
of the United States; and
(ix) Copies of all permits required by the laws of any country of
export, re-export, or origin of the wildlife.
(5) You must, upon notice, provide authorized Service officers with
access to your place(s) of business at all reasonable times and give us
an opportunity to examine your inventory of imported wildlife or the
wildlife to be exported, the records required to be kept by paragraph
(b)(4) of this section, and an opportunity to copy these records
subject to applicable limitations of the law;
(6) You must submit a report containing the information you must
keep in paragraph (b)(4) of this section within 30 days of receiving a
written request from us; and
(7) An import/export license gives you general permission to engage
in business as an importer or exporter of wildlife. An import/export
license is in addition to, and does not supersede, any other license,
permit, or requirement established by Federal, State, or tribal law for
the import or export of wildlife.
(c) Duration of import/export license. Any import/export license
issued under this section expires on the date shown on the face of the
import/export license. In no case will the import/export license be
valid for more than 1 year after the date of issuance.
(d) Issuance, denial, suspension, revocation, or renewal of import/
export license. We may deny, suspend, revoke, restrict, or deny renewal
of an import/export license to any person named as the holder, or a
principal officer or agent of the holder, under any of the criteria
described in part 13 of this chapter or under the following criteria:
(1) Failure to pay fees, penalties, or costs required by this part;
(2) You repeatedly fail to notify our Service officers at the
appropriate port at least 48 hours prior to the estimated time of
arrival of a live or perishable wildlife shipment under Sec. 14.54(a)
or at least 48 hours prior to the estimated time of exportation of any
wildlife under Sec. 14.54(f);
(3) You repeatedly import or export certain types of wildlife
without meeting the requirements of this part or other applicable parts
of this subchapter.
Sec. 14.94 What fees apply to me?
(a) Import/export license application fees. You must pay the
application and amendment fees, as defined in Sec. 13.11(d)(4), for
any required import/export license processed under Sec. 14.93 and part
13 of this subchapter.
(b) Designated port exception permit application fees. You must pay
the application and amendment fees, as defined in Sec. 13.11(d)(4),
for any required designated port exception permit processed under
subpart C of this part.
(c) Designated port base inspection fees. Except as provided in
paragraph (k) of this section, an import/export license holder must pay
a base inspection fee, as defined in Sec. 14.94(h)(1), for each
wildlife shipment imported or exported at a designated port or a port
acting as a designated port. You can find a list of designated ports in
Sec. 14.12 and the criteria that allow certain ports to act as
designated ports in Sec. Sec. 14.16-14.19, Sec. 14.22, and Sec.
14.24 of this part.
(d) Staffed nondesignated port base inspection fees. You must pay a
nondesignated port base inspection fee, as defined in Sec.
14.94(h)(2), for each wildlife shipment imported or exported at a
staffed nondesignated port, using a designated port exception permit
issued under subpart C of this part. This fee is in place of, not in
addition to, the designated port base fee.
(e) Nonstaffed, nondesignated port base inspection fees. You must
pay a nondesignated port base inspection fee, as defined in Sec.
14.94(h)(3), for each wildlife shipment imported or exported at a
nonstaffed, nondesignated port using a designated port exception permit
issued under subpart C of this part. You must also pay all travel,
transportation, and per diem costs associated with inspection of the
shipment. These fees are in place of, not in addition to, the
designated port base fee. The Service will prorate charges for travel,
transportation, and per diem costs if multiple importers or exporters
require inspection at the same time at the same location. All
applicable base and premium fees apply to each shipment.
(f) Premium inspection fees. You must pay a premium inspection fee
in addition to any base inspection fees required in paragraphs (c),
(d), and (e) of this section, as defined in Sec. 14.94(h)(4), for the
following types of shipments:
(1) Except as provided in paragraph (k) of this section, any
shipment containing live or protected species, as defined in Sec.
14.94(h)(4), imported or exported by an import/export license holder at
a designated port or a port acting as a designated port. You can find a
list of designated ports in Sec. 14.12 and the criteria that allow
certain ports to act as designated ports in Sec. Sec. 14.16-14.19,
Sec. 14.22, and Sec. 14.24;
[[Page 74630]]
(2) Any shipment containing live or protected species, as defined
in Sec. 14.94(h)(4), imported or exported via air, ocean, rail, or
truck cargo, by persons not requiring an import/export license under
Sec. 14.91, at a designated port or a port acting as a designated
port. You can find a list of designated ports in Sec. 14.12 and the
criteria that allow certain ports to act as designated ports in Sec.
Sec. 14.16-14.19, Sec. 14.22, and Sec. 14.24;
(3) Any shipment containing live or protected species, as defined
in Sec. 14.94(h)(4), imported or exported at a nondesignated port
using a designated port exception permit issued under subpart C of this
part.
(4) You must pay two premium inspection fees in addition to any
base inspection fees required in paragraphs (c), (d), and (e) of this
section, as defined in Sec. 14.94(h)(4), if your wildlife shipment
contains live and protected species.
(g) Overtime fees. You must pay fees for any inspections, including
travel time, that begin before normal working hours, that extend beyond
normal working hours, or are on a Federal holiday, Saturday, or Sunday.
(1) Overtime fees are in addition to any base inspection fees or
premium inspection fees required for each shipment. We will charge
these fees regardless of whether or not you have an import/export
license.
(2) Our ability to perform inspections during overtime hours will
depend upon the availability of Service personnel. If we cannot perform
an inspection during normal working hours, we may give you the option
of requesting an overtime inspection.
(3) The overtime fee is calculated using a 2-hour minimum plus any
actual time in excess of the minimum. It incorporates the actual time
to conduct an inspection and the travel time to and from the inspection
location.
(4) The Service will charge any overtime, including travel time, in
excess of the minimum in quarter-hour increments of the hourly rate.
The Service will round up an inspection time of 10 minutes or more
beyond a quarter-hour increment to the next quarter-hour and will
disregard any time over a quarter-hour increment that is less than 10
minutes.
(5) The Service will charge only one overtime fee when multiple
shipments are consigned to or are to be exported by the same importer
or exporter and we inspect all at the same time at one location. The
overtime fee will consist of one 2-hour minimum or the actual time for
inspection of all the applicable shipments, whichever is greater. All
applicable base and premium fees will apply to each shipment.
(6) We will charge 1 hour of time at 1\1/2\ times the hourly labor
rate for inspections beginning less than 1 hour before normal working
hours.
(7) We will charge a minimum of 2 hours of time at an hourly rate
of 1\1/2\ times the average hourly labor rate for inspections outside
normal working hours, except for inspections performed on a Federal
holiday.
(8) We will charge a minimum of 2 hours of time at an hourly rate
of 2 times the average hourly labor rate for inspections performed on a
Federal holiday.
(h) Fee schedule.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fee cost per shipment per year
Inspection fee schedule --------------------------------------------------------------------------------------------------------------------
2008 2009 2010 2011 2012 and beyond
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) Designated port base inspection $85................... $87................... $89.................. $91.................. $93.
fee (see Sec. 14.94 (c)).
(2) Staffed nondesignated port base $133.................. $136.................. $139................. $142................. $145.
inspection fee (see Sec.
14.94(d)).
(3) Nonstaffed nondesignated port $133.................. $136.................. $139................. $142................. $145.
base inspection fee (see Sec.
14.94(e)).
(4) Premium inspection fee at any
port (see Sec. 14.94 (f)):
(i) Protected species. Any $19................... $37................... $56.................. $74.................. $93.
species that requires a permit
under parts 15, 16, 17, 18,
21, 22, or 23 of this chapter;.
(ii) Live species. Any live $19................... $37................... $56.................. $74.................. $93.
wildlife, including live
viable eggs and live pupae.
(5) Overtime inspection fee (see
Sec. 14.94(g)):
(i) Inspections beginning less $48................... $49................... $51.................. $52.................. $53.
than 1 hour before normal work
hours.
(ii) Inspections after normal $96 min. + $48/hr..... $98 min. + $49/hr..... $101 min. + $51/hr... $103 min. + $52/hr... $105 min. + $53/hr.
work hours, including Saturday
and Sunday. (2 hour minimum
charge plus fee for additional
time).
(iii) Inspections on Federal $128 min. + $64/hr.... $131 min.+ $65/hr..... $133 min. + $67/hr... $136 min. + $68/hr... $139 min. + $70/hr.
holidays. (2 hour minimum
charge plus fee for additional
time).
--------------------------------------------------------------------------------------------------------------------------------------------------------
(i) The Service will not refund any fee or any portion of any
license or inspection fee or excuse payment of any fee because
importation, exportation, or clearance of a wildlife shipment is
refused for any reason.
(j) All base inspection fees, premium inspection fees, and overtime
fees will apply regardless of whether or not a physical inspection of
your wildlife shipment is performed, and no fees will be prorated
except as provided in paragraphs (e) and (g)(5) of this section.
(k) Exemptions to inspection fees.
(1) Certain North American-origin wild mammal furs or skins.
Wildlife shipments that meet all of the following criteria are exempt
from the designated port base inspection fee (however, these shipments
are not exempt from the designated port overtime fees or the import/
export license application fee):
(i) The wildlife is a raw fur; raw, salted, or crusted hide or
skin; or a separate fur or skin part, lawfully taken from the wild in
the United States, Canada, or Mexico that does not require permits
under parts 17, 18, or 23 of this chapter; and
(ii) You, as the importer or exporter, or a member of your
immediate family, such as your spouse, parents, siblings, and children,
took the wildlife from the
[[Page 74631]]
wild and are shipping the wildlife between the United States and Canada
or Mexico; and
(iii) You have not previously bought or sold the wildlife described
in paragraph (k)(1)(i) of this section, and the shipment does not
exceed 100 raw furs; raw, salted, or crusted hides or skins; or fur or
skin parts; and
(iv) You certify on Form 3-177, Declaration for Importation or
Exportation of Fish or Wildlife, that your shipment meets all the
criteria in this section.
(2) You do not have to pay base inspection fees, premium inspection
fees, or overtime fees if you are importing or exporting wildlife that
is exempt from import/export license requirements as defined in Sec.
14.92(a) or you are importing or exporting wildlife as a government
agency as defined in Sec. 14.92(b)(1)(ii).
(3) You do not have to pay base inspection fees, premium inspection
fees, or overtime fees if you are importing or exporting wildlife that
meets the criteria for ``domesticated animals'' as defined in Sec.
14.4.
Dated: October 16, 2008.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks. .
[FR Doc. E8-29070 Filed 12-8-08; 8:45 am]
BILLING CODE 4310-55-P